Parashat Ki Tetze
“If a man comes upon a virgin who is not engaged and he seizes her and lies with her, and they are discovered, the man who lay with her shall pay the father fifty [shekels of] silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her” (Deuteronomy 22:28).
In the portion of Reeh we showed what the prayer of the G-d fearing, “return our judges as at the start,” means, and in this portion we will reinforce what we said there.
The surprising thing is that the Torah does not treat the prohibition against rape as a serious prohibition. One who rapes a small girl or an adolescent — what is his punishment? He pays 50 pieces of silver (worth about 40,000 NIS), and one who rapes a grown woman, one over the age of twelve and a half, is exempt from paying the fine, as brought in Ketubot 29a. And if the girl agrees, he must marry her and stay married to her for the rest of her life. On the other hand, a married woman who desires another man, and of their own free will and choice they sleep together, what happens to them, according to the Torah? “If a man is found lying with another man’s wife, both of them — the man and the woman with whom he lay — shall die.” They are killed by strangulation, as described in Sanhedrin 52b, “the commandment to strangle — they would bury him in trash to his knees, they place a rough scarf in a soft one, each pulling its own way, until his soul expires.” These laws are the diametric opposite of modern law, which does not forbid any act between consenting adults, like a married woman who desires another man, while all acts of rape and sexual violence, even against a single woman, carry a sentence of 20 years in jail.
As we have already shown in the portion of Reeh, even though there is no Sanhedrin which can hand down death sentences in our days, based on the requirements of the times the religious courts may hand down judgement as they see fit, and thus the Rama in Shulchan Aruch Even HaEzer 177, paragraph five, wrote: “The religious courts may fine the whores to make a fence [to guard the Torah]. There was once an incident with a woman who slept with an idolater and they cut off her nose to make her disgusting.” Therefore, one should not be surprised that there are, in the Charedi community, “tzniut squads” which go out to hit, break bones, burn and even kidnap those whose actions do not exactly meet what the Shulchan Aruch calls for. They do all this based on the rulings of the rabbis, with their consent and encouragement.
Another law which would never be seen in the law codes of an enlightened country: “No one whose testes are crushed or whose member is cut off shall be admitted into the congregation of the Lord.” As written in the Shulchan Aruch, Even HaEzer section five, paragraph one, “one whose testes are crushed or whose member is cut off may not marry a Jewish woman.” A couple in love who wish to wed, even though the man cannot impregnate the woman through intercourse would not be permitted to wed by the Rabbinate. One who wishes to delve more deeply into the matter may look in the Even HaEzer, section five.
And see something strange. Chazal, in Yevamot 75b, stated: “Rabbi Judah said in the name of Shmuel: one whose testes are crushed by Heaven is allowed.” That is, if a person is born with his testes already crushed or his member cut off, even though he can not sire children, he is permitted to marry a Jewish woman. The whole prohibition is only if he had been wounded by another person, using a thistle or a knife (if his member was cut off due to an illness, the arbiters are divided — see Even HaEzer 5:10). Since the Torah did not make this distinction, why did Chazal see fit to say such odd things? Sefer HaChinuch saw this oddness and wrote, on commandment 559: “At the root of the precept lies the purpose to remove [the vile practice] far from us, that we should not destroy organs of reproduction in any way — as is known of kings, that they castrate males in order to appoint them keepers of the women…We, however, the people of holiness, knowing that anyone emasculated by human hands is ruled out from becoming united ever after with a Jewish daughter…With this thesis we can find a reason for the difference in the prohibition between someone damaged by human hands and one damaged by Heaven’s agency.” Using the Chinuch‘s reason we should have only forbidden one who castrates himself on purpose, and not one who had no choice, such as one who fell and was harmed by a thistle and was emasculated.
Since we are speaking of one whose testes have been crushed, we will say something on this matter, which reinforces what we said in Pamphlet 8 — that contrary to what many religious arbiters seem to think, there are times when reality changes and the Halacha changes with it.
Maimonides, in Sefer HaMitzvot, prohibition 360, explains: “This warns one who has lost a organ for reproduction through intercourse, so that he is unable to sire children, not to have intercourse with a Jewish woman.” The Gemara in Yevamot 75a says, “Who is ‘one whose testes are crushed’? Any whose testes are damaged…even if they have been punctured.” Chazal understood that a man whose testes have been punctured is considered ‘one whose testes are crushed’ and he cannot sire a child, and therefore according to the Torah may not marry a Jewish woman. But every day doctors use syringes to puncture men’s testicles to help him fulfil the commandment to be fruitful and multiply, so in our days puncturing the testes does not preventing him from siring children, despite Chazal’s opinion.
And if we follow the rule “reality changes but Halacha does not change” as our rabbis do about treifot (so they forbade giving chickens injections in their heads lest their meninges be punctured), then men whose testes are punctured should be considered as ‘one whose testes are crushed’. But Rabbi Moshe Feinstein OBM ruled, permitting them. He says, in Igrot Moshe, Even HaEzer 2, paragraph three: “They may allow a doctor to take something from the testicle to check one who has lived with his wife for several years and they have had no children, to know how to heal him so he can sire children.” How does Rabbi Feinstein reconcile the contradiction between his permission and the Halachic ruling about an animal’s unfitness to be eaten?
“But what we can discuss here is that since a punctured testicle was specifically mentioned in the Gemara as forbidden and they conclude that such a man cannot sire children, yet we now see in our times that they do sire children…While the prohibition of treifot is based on the situation in the time of the giving of the Torah. Then an animal injured in such a way could not live, and this is why a halacha given at Sinai was needed: to say that these are thetreifot forever, even if nature changes and the sages do not consider such injures to be fatal. But this halacha was said only about the prohibition of eatingtreifah…However, about one whose testes have been crushed and one whose member has been cut off, since we have not found that it was given as halacha at Sinai who is considered one whose testes have been crushed and one whose member has been cut off, but the Torah law is that one who cannot sire children because of his injury is forbidden. And the Torah was given to the sages, to say in their judgment who cannot sire children, for this depends on nature changing, who cannot sire children at any given time. Therefore, since when the testes were punctured by physicians we see that they now sire children, we should permit them.”
We learn from the words of Rabbi Moshe Feinstein OBM that when we decide to change a rule set in the Gemara because of an error in understanding reality, we must say that it is not from Sinai. And his words need study, for Chazal also said the laws of treifot. How does the rabbi know that they are not subject to change, even if reality changes, while the laws of one whose testes are crushed is given to change? This is another sign for you that the Halacha is in the hands of our rabbis, based on their opinion and their judgement.
Another important thing we learn from the words of Rabbi Feinstein is that about the laws of one whose testes are crushed or one whose member is cut off we must ask contemporary physicians, and all the sages’ words fall into a deep hole, for they said what they knew in their days and we follow the medical wisdom of our own days, for in their hands, even one whose testes are crushed or whose member has been cut off can sire children.
And more than that — it seems that what the rabbi said, “reality changed,” is a euphemism for Chazal’s error on matters of medicine and the anatomy of the male reproductive system. Proof of this is in the Gemara, Yevamot 75b, “There was an incident in Pumpedita, when the opening which releases sperm was blocked, and he released sperm through the opening which releases urine…If it is released through the proper opening, sperm is mature and can impregnate, if it is released through the urinary tract opening, it is not mature and cannot impregnate.” Thus ruled the Shulchan Aruch, Even HaEzer, section five, paragraph six: “If the path of the sperm is blocked and he sees sperm in his urinary tract, he is forbidden.” They learned this reality from the words of Chazal in Bechorot 44b, “There are two holes in a man, one through which he releases urine and one through which he releases sperm, and there is only the thinnest of separations between them.” One who looks at a picture of the male reproductive system will see that there is no truth to the sages’ words. Two tubes carry the sperm, one from each testicle, and they reach the prostate which is found below the bladder (within the stomach cavity). The whole way, from the bladder to the glans, there is only one tube, called the urethra, through which sometimes urine passes and sometimes sperm (see illustration).
This fact is certainly not in the realm of “nature changing,” that there were once two tubes and now there is only one. Another thing Chazal learned from this faulty view of reality is that one who holds back risks becoming sterile: “When a man must use his openings, if an opening develops [between the outlet for urine and the outlet for sperm, something which could never happen, as there is only one tube and one opening], he will become sterile.”
For more detail, see Pamphlet 8 and what we wrote on the portion ofShoftim. From all this you will learn what we say over and over again, that our rabbis in each generation change the Halacha based on contemporary requirements and their own judgement, and there are also those who attempt to make ruling for the generations, though reality does change and the Halacha is left without a factual leg to stand on (as we have seen in the issue of treifot). This is the way of the Torah, “truth shall rise from the earth” and not “truth from the Heavens shall descend”: truth is in the hands of people to determine by it laws and Halacha. Thus it is in every human society, in every place. There are those who frankly acknowledge that man is the source of legislative authority and there are those who place that authority in a Higher Being, concealed and hidden from view, who nobly gave legislative authority to some select followers. And see how amazing it is — even those who change rules based on the requirements of the times and place and community, aside from the aura of Divine permission, have nothing to divide them from any other sort of legislator, for the earth was given to Man, and human nature doesn’t change.
Words of True Knowledge